77 F.

3d 1247

UNITED STATES of America, Plaintiff-Appellee,

v.
George M. CIAPPONI, aka George Norman Schreiber,
Defendant-Appellant.
No. 94-2274.

United States Court of Appeals,

Tenth Circuit.
Feb. 20, 1996.
Rehearing Denied March 28, 1996.
1

Appeal from the United States District Court for the District of New Mexico
(D.C. No. CR-90-516-LH).

Judith A. Patton, Assistant United States Attorney (John J. Kelly, United States
Attorney, with her on the brief), Las Cruces, New Mexico, for PlaintiffAppellee.

Jenine Jensen, Assistant Federal Public Defender (Michael G. Katz, Federal

Public Defender, with her on the brief), Denver, Colorado, for DefendantAppellant.

Before MOORE and LOGAN, Circuit Judges, and O'CONNOR, Senior District
Judge.*

EARL E. O'CONNOR, Senior District Judge.

Defendant Ciapponi pled guilty before a magistrate judge in the United States
District Court for the District of New Mexico to possession of marijuana with
intent to distribute in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(D).
Thereupon, the district judge sentenced defendant to 33 months imprisonment
based, in part, on a criminal history category of V. Defendant appeals, raising
two issues: (1) whether the magistrate judge lacked jurisdiction to accept
defendant's guilty plea; and (2) whether defendant's two prior convictions
should have been considered as "related" offenses in calculating his criminal
history category. We exercise jurisdiction pursuant to 28 U.S.C. 1291 and 18

U.S.C. 3742 and affirm.

Background
7

On October 30, 1990, defendant was arrested at a United States Border Patrol
checkpoint in southern New Mexico. Approximately ten kilograms of
marijuana were found in the vehicle defendant was driving at the time of his
arrest. The grand jury returned an indictment against defendant, charging him
with one count of possession with intent to distribute less than 50 kilograms of
marijuana. Defendant failed to appear for arraignment and an arrest warrant
was issued. Nearly three years later, defendant was found in Colorado, where
he was in state custody on drug charges, and was returned to New Mexico.

The court appointed counsel for defendant, who negotiated a plea agreement
with the government. In exchange for defendant's guilty plea, the government
agreed that: (1) defendant was entitled to a two-level reduction under United
States Sentencing Guideline ("U.S.S.G.") 3E1.1 for acceptance of
responsibility, and (2) defendant played only a minor role of courier in the
offense.

On May 24, 1994, District Judge LeRoy Hansen, sitting in Albuquerque, New
Mexico, designated Magistrate Judge Galvan to accept defendant's guilty plea
in Las Cruces. Defendant appeared before Magistrate Judge Galvan on June 13,
1994. At the onset of the hearing, the magistrate judge informed defendant that
he had a right to appear before a district judge to enter his plea. With the advice
of counsel, defendant executed a Consent to Proceed form, waiving his right to
enter his plea before a district judge and consenting to proceed before the
magistrate judge. Magistrate Judge Galvan then proceeded in accordance with
Rule 11 of the Federal Rules of Criminal Procedure and accepted defendant's
plea of guilty.

10

On August 30, 1994, defendant and his counsel appeared before District Judge
Hansen for sentencing. Defendant made no objection to the presentence report
or to the court's finding of an offense level of 14 and a criminal history category
of V, resulting in a guideline range for imprisonment of 33-41 months. The
court sentenced defendant to 33 months imprisonment, three years supervised
release, and a $50 special assessment.

Discussion
11

I. The magistrate judge's authority to accept defendant's guilty plea.

12

Defendant now contends that the taking of his plea by the magistrate judge
violates the Federal Magistrates Act, 28 U.S.C. 631-639 (1988) (the
"Magistrates Act"), and Article III of the Constitution. He argues that a
magistrate's authority is jurisdictional and cannot be waived, even with
defendant's consent.

13

We first note that defendant did not raise this objection below. The
contemporaneous objection requirement of Rule 30 of the Federal Rules of
Criminal Procedure generally requires that a party make a timely objection to
preserve an issue for appeal. However, pursuant to Rule 52(b), we may review
a legal issue not preserved below for plain error. See, e.g., United States v.
Olano, 07 U.S. 725, 734-36, 113 S.Ct. 1770, 1778-79, 123 L.Ed.2d 508 (1993)
(appellate court should conduct plain error review under Rule 52(b) "in those
circumstances where a miscarriage of justice would otherwise result"). A plain
error involves a mistake that is both "obvious and substantial." United States v.
Meek, 998 F.2d 776, 779 (10th Cir.1993). Because defendant raises a potential
constitutional error, we "apply the plain error rule less rigidly." United States v.
Nelson, 36 F.3d 1001, 1003 (10th Cir.1994).

14

"Congress intended magistrates to play an integral and important role in the

federal judicial system." Peretz v. United States, 501 U.S. 923, 928, 111 S.Ct.
2661, 2665, 115 L.Ed.2d 808 (1991). In furtherance of that goal, Congress
amended the Magistrates Act in 1976 in response to a "series of court decisions
that construed the Magistrates Act narrowly, stifling the greater use of these
judicial officers by the district courts." United States v. Williams, 23 F.3d 629,
632 (2nd Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 641, 130 L.Ed.2d 547
(1994). The Magistrates Act, as amended, expressly authorizes district court
judges to assign additional duties to magistrate judges: "A magistrate may be
assigned such additional duties as are not inconsistent with the Constitution and
laws of the United States." 28 U.S.C. 636(b)(3). The legislative history of the
Magistrates Act demonstrates that, in enacting the "additional duties" clause,
Congress intended to aid overburdened district courts with their caseloads by
significantly expanding the duties which may be delegated to a magistrate
judge to permit greater use of magistrate judges as judicial officers. Id. at 63233.

15

Analysis of defendant's challenge to the magistrate judge's authority involves

both statutory and constitutional questions. Our statutory inquiry is whether
referral of the task at issue falls within the "additional duties" clause of the
Magistrates Act. We ask whether the task bears some reasonable relation to the
specified duties which may be assigned to magistrate judges under the
Magistrates Act.1 Id. at 930-31, 111 S.Ct. at 2666-67.

16

Even if a task is authorized under the Magistrates Act, a second inquiry arises
regarding whether referral of a task to a magistrate judge impinges a criminal
defendant's constitutional right under Article III to have a district court judge
preside at all critical stages of a felony trial. See Peretz, 501 U.S. at 934, 111
S.Ct. at 2668.

17

In construing the Magistrates Act, the principle of constitutional avoidance 2

requires clear evidence that "Congress actually intended to permit magistrates
to take on a role that raise[s] a substantial constitutional question." Id. at 930,
111 S.Ct. at 2666. However, when the defendant consents to proceed before a
magistrate judge, the constitutional analysis changes significantly because no
constitutional right is implicated if the defendant does not object to the absence
of an Article III judge. Id. at 936, 111 S.Ct. at 2669.

18

The Supreme Court considered the "additional duties" clause in the criminal
context in Peretz, 501 U.S. 923, 111 S.Ct. at 2662, and held that, with a
defendant's consent, a magistrate judge may preside over jury selection in a
felony case. Contrasting Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237,
104 L.Ed.2d 923 (1989) (holding that a magistrate lacks authority to preside
over jury selection in a felony case if the defendant objects), the Court stressed
that the defendant's consent was critical to both the statutory and constitutional
inquiries. Peretz, 501 U.S. at 931-40, 111 S.Ct. at 2666-71.

19

The Second Circuit recently addressed the question of a magistrate judge's

authority to accept a guilty plea in United States v. Williams, 23 F.3d at 63235. Looking to Peretz, the court held that the acceptance of a guilty plea in a
felony case by a magistrate judge, with the defendant's consent, is authorized
under the "additional duties" clause and does not affront the structural
protections contemplated by Article III of the Constitution. We agree with the
Second Circuit's well-reasoned analysis and find its conclusion persuasive.

20

In Williams, 23 F.3d at 631, the magistrate judge conducted the Rule 11 plea
allocution, found a factual basis for the plea, and made a recommendation to
the district judge that the plea be accepted. Subsequently, the defendant sought
to withdraw his guilty plea prior to sentencing and challenged the magistrate's
authority to conduct the Rule 11 allocution. Id. The district court denied the
defendant's motion to withdraw the plea, holding that the allocution was "clear
and unmistakable" and the defendant had admitted his guilt. Id.

21

Unlike the defendant in Williams, the defendant here did not move to withdraw
his plea or otherwise request review by the district court of the plea proceeding.

He raised no objection to the magistrate judge's taking of the plea until the
instant appeal. In that respect, the present case is more analogous to Peretz than
is Williams.
22

In Peretz, the defendant consented to the assignment of jury selection to the

magistrate judge. He neither asked the district court to review the voir dire
proceedings conducted by the magistrate judge, nor did he object at any time
prior to appeal. The Court held, "a defendant has no constitutional right to have
an Article III judge preside at jury selection if the defendant has raised no
objection to the judge's absence." Id. at 936, 111 S.Ct. at 2669. The same may
be said in the case before us. Defendant's failure to object or otherwise request
review by the district court leaves him in no position to now complain that the
magistrate judge's taking of his guilty plea, a proceeding to which he expressly
consented, violated his constitutional rights. "The most basic rights of criminal
defendants are ... subject to waiver." Peretz, 501 U.S. at 936, 111 S.Ct. at 2669.
Consistent with Peretz and Williams, we hold that, with a defendant's express
consent, the broad residuary "additional duties" clause of the Magistrates Act
authorizes a magistrate judge to conduct a Rule 11 felony plea proceeding, and
such does not violate the defendant's constitutional rights.

23

Defendant raises one point beyond those addressed in Williams. Citing United
States v. Khan, 774 F.Supp. 748, 749 (E.D.N.Y.1991) (referral of the plea
proceeding was conditioned on a subsequent review by the district court of the
transcript to ensure voluntariness and compliance with Rule 11), defendant
complains that the district judge did not conduct a review of the plea
proceeding. We find defendant's argument without merit for two reasons.

24

First, it is implicit in the sentencing record, which includes the presentence

investigation, that the district judge reviewed the facts of the case against
defendant and the basis for his guilty plea. Absent an objection or request for
review by the defendant, the district court was not required to engage in any
more formal review of the plea proceeding.

25

Second, to the extent that defendant challenges the delegation of the plea
proceedings because section 636(b)(3) contains no express procedures for de
novo review, the Supreme Court rejected this argument in Peretz. The Court
held, "to the extent 'de novo review is required to satisfy Article III concerns, it
need not be exercised unless requested by the parties.' " 501 U.S. at 937-38, 111
S.Ct. at 2670 (quoting United States v. Peacock, 761 F.2d 1313, 1318 (9th
Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985)), see
also United States v. Raddatz, 447 U.S. 667, 685-86, 100 S.Ct. 2406, 2417-18,
65 L.Ed.2d 424 (1980) (J. Blackmun concurring) (upholding the delegation of

a suppression motion hearing because the "entire process takes place under the
district court's total control and jurisdiction.").
26

In sum, neither the Magistrates Act nor Article III requires that a referral be
conditioned on subsequent review by the district judge, so long as a defendant's
right to demand an Article III judge is preserved. Federal Rule of Criminal
Procedure 32(d) preserves a defendant's right to demand an Article III judge by
providing for review of a plea proceeding, as a matter of right, through a
motion to withdraw a guilty plea prior to sentencing. The availability of such a
procedure adequately protects a defendant's rights under Article III of the
Constitution.

27

II. Calculation of defendant's criminal history category.

28

Defendant also challenges the calculation of his criminal history category.

Defendant did not object at the sentencing hearing, which normally precludes
review by this court. United States v. Nelson, 36 F.3d at 1003. Clearly, factual
disputes bearing on the sentence, which are not raised at sentencing, are
waived. United States v. Saucedo, 950 F.2d 1508, 1518 (10th Cir.1991) (citing
United States v. Lopez, 923 F.2d 47, 50 (5th Cir.), cert. denied, 500 U.S. 924,
111 S.Ct. 2032, 114 L.Ed.2d 117 (1991)). However, we recognize a narrow
exception and review a legal question involving application of the sentencing
guidelines for plain error. Nelson, 36 F.3d at 1003.

29

Defendant claims that two previous convictions for state law drug offenses, for
which he received six criminal history points, were "related offenses" under
U.S.S.G. 4A1.2(a)(2). He argues that the two prior offenses should have been
treated as one case for purposes of 4A1.1(a), (b), and (c), and only three
criminal history points assessed for them. See United States v. Gary, 999 F.2d
474, 479 (10th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 259, 126 L.Ed.2d 211
(1993).

30

U.S.S.G. 4A1.2(a)(2) provides that "[p]rior sentences imposed in unrelated

cases are to be counted separately. Prior sentences imposed in related cases are
to be treated as one sentence for purposes of the criminal history." Application
note 3 to U.S.S.G. 4A1.2 (1989) interprets "related cases" as follows:

31
Cases
are considered related if they (1) occurred on a single occasion, (2) were part
of a single common scheme or plan, or (3) were consolidated for trial or sentencing.
32

The presentence investigation report shows that the first offense involved the

sale of cocaine and LSD by defendant, using the names Stanley Eugene Daves
and Jason George Lepanto, on May 25, 1993. The second offense occurred on
June 1, 1993, when defendant, using the name Jason George Lepanto, sold 262
grams of cocaine to an undercover officer. The two offenses were charged in
two separate indictments, 93-1571 and 93-1163, respectively. Defendant was
sentenced to two years on the 93-1571 indictment, to run concurrent with the
four-year sentence on the 93-1163 indictment.
33

Defendant argues that his two state drug offenses were "related" because they
were not separated by an intervening arrest,3 were part of a common scheme or
plan, and were consolidated for sentencing. He contends that there is a factual
nexus between the two offenses because the two drug sales occurred one week
apart, he was arrested by the same law enforcement agency, and both crimes
involved street sales of cocaine.

34

Admittedly, the two offenses are similar in that they both involve the sale of
controlled substances. However, the two offenses occurred on two separate
occasions and under different circumstances--the first offense involved the sale
of cocaine and LSD to an undisclosed person, while the second offense
involved the sale of cocaine to an undercover officer. Under these
circumstances, the district court did not err in finding that the two offenses were
not a part of a common scheme or plan.

35

In addition, the two prior cases were not consolidated. In United States v.
Alberty, 40 F.3d 1132, 1134 (10th Cir.1994), cert. denied, --- U.S. ----, 115
S.Ct. 1416, 131 L.Ed.2d 300 (1995), we held that a defendant bears the burden
of showing that two offenses were consolidated by presenting documentation of
the consolidation, such as a formal order of transfer or consolidation. Absent
such reliable proof of consolidation, the mere fact that the sentences on the two
offenses were ordered to run concurrently does not establish that the two
offenses were related for purposes of U.S.S.G. 4A1.1. Id.; see also United
States v. Villarreal, 960 F.2d 117, 119 n. 4 (10th Cir.), cert. denied, 506 U.S.
856, 113 S.Ct. 166, 121 L.Ed.2d 114 (1992) (concurrent sentencing of two
offenses does not equate with consolidation for purposes of calculating the
appropriate criminal history category); United States v. Wilson, 41 F.3d 1403,
1404 (10th Cir.1994) (sentencing for two distinct offenses by the same court on
the same day does not make them related under U.S.S.G. 4A1.2). On the
record as a whole, it was not plain error for the district court to treat the
offenses as separate in calculating defendant's criminal history category.

36

AFFIRMED.

The Honorable Earl E. O'Connor, Senior United States District Judge for the
District of Kansas, sitting by designation

The Magistrates Act authorizes magistrate judges to perform numerous

ministerial tasks. See 28 U.S.C. 636(b) and (c); Gomez v. United States, 490
U.S. 858, 867-70, 109 S.Ct. 2237, 2243-45, 104 L.Ed.2d 923 (discussing the
various tasks that a magistrate is authorized to perform under the Magistrates
Act). In addition, with consent of the parties, the Magistrates Act expressly
authorizes a magistrate judge to try civil matters, 28 U.S.C. 636(c)(1), and
misdemeanor criminal offenses, 28 U.S.C. 636(a)(3) and 18 U.S.C. 3401

Constitutional avoidance refers to the Court's "settled policy to avoid an

interpretation of a federal statute that engenders constitutional issues." Gomez,
490 U.S. at 864, 109 S.Ct. at 2241

Defendant is apparently looking to the more recent versions of U.S.S.G.

4A1.2 application note 3, which mentions an intervening arrest as a factor in
determining whether two prior offenses are related. However, the record
reflects that defendant was sentenced under the 1989 version of the guidelines,
which does not include the intervening arrest factor